Immigrant Covering

Over the last ten years there has been a marked shift in U.S. immigration law away from reliance upon statutory authorization and regulatory provisions to subregulatory or “liminal” rules and discretionary decision-making. This trend is apparent in both federal immigration law and in state and local rulemaking affecting immigrant communities. This Article proposes a new theoretical framework within which to analyze this phenomenon. It uses “covering,” a legal theory first developed in the context of employment discrimination and equal protection, as a lens through which to view these recent developments in immigration law and policy.

It shows how immigration laws operate to promote immigration status “conversion,” “passing,” and “covering.” It charts the proliferation, in the last decade, of “covering” provisions that do not alter immigrants’ underlying immigration statuses but nonetheless facilitate their integration into American society, and it discusses the normative advantages and disadvantages of this increasingly prevalent phenomenon.